Commercial Litigation and Arbitration

Privilege — Waiver — School Board President Lacks Authority to Waive Privilege of Board

From Sampson v. School Dist. of Lancaster, 2008 U.S. Dist. LEXIS 91421 (E.D. Pa. Nov. 5, 2008):

Defendants rely on the same statute [24 P.S. § 4-427 (2008)] and contend that [School Board President] Dixon's distribution of the [privileged] Weldon Memorandum to Plaintiff was an ultra vires act. Defendants contend that Dixon had no authority to waive the attorney-client privilege, since "[t]he law in Pennsylvania is clear that the president of a school board lacks the unilateral authority to bind the School District to actions such as the making of contracts in the absence of approval by a majority of the board of school directors." … Defendants note that the statute on which Plaintiff relies grants the school board president "authority to act on behalf of the School District, but only when authorized by the Board of School Directors in accordance with the law." … For example, the school board president "when directed by the board, shall execute any and all deeds, contracts, warrants to tax collectors, reports, and other papers. . . ." 24 P.S. § 4-427 (2008) (emphasis added). "[The school board president] shall in no case, except as this section otherwise provides, sign any order for any sum unless the same has first been acted upon and approved by the board . . . ." Id. (emphasis added).

We find that Dixon did not have authority to waive the attorney-client privilege when she distributed the Weldon Memorandum, since waiving the privilege is not one of the "duties [that] pertain[s] to [her] office." See 24 P.S. § 4-427 (2008). The Pennsylvania Public School Code does not define which duties "pertain" to the school board president's office. But, a fair reading of the statute suggests that waiving the attorney-client privilege on a confidential settlement memorandum is not one of them. The statute vests the school board president with certain powers to "execute any and all deeds, contracts, . . . and other papers," but only subject to the school board's approval. See id. If a board president cannot execute even minor contracts and "other papers" without the board's approval, we conclude that the board president cannot waive the attorney-client privilege — a much more significant decision — on behalf of the school district without the board's approval. This conclusion is consistent with the practice already employed by Pennsylvania school districts. See, e.g., Monaghan v. Reading Sch. Dist., 152 Pa. Commw. 348, 618 A.2d 1239, 1242 (Pa. Commw. Ct. 1992) (noting that the Reading School District's attorney refused to testify "until the school district would agree to waive the attorney client privilege," and as a result, the "School Board voted 4 to 3 to tentatively not waive its attorney/client privilege."); cf., Miles-McClellan Constr. Co. v. Westerville Bd. of Educ., 2006 Ohio 3439, 2006 WL 1817223, at *3 (Ohio Ct. App. 2006) (finding that even though an Ohio statute provided for school board approval of all contracts, a school district's attorney could waive attorney-client privilege as a "properly-appointed agent" whose appointment "was appropriately ratified" by the school board). Since Dixon distributed the Weldon Memorandum without board approval, she acted ultra vires and did not waive Defendants' privilege.

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